The Best Interests of the Child – Changes in Child’s Circumstances

Under section 60CC(3)(d) of the Family Law Act, the Court is required to consider, as an additional consideration, the likely effect of any changes in the child’s circumstances. This includes the likely effect of any separation from parents and other persons (including any other child or a grandparent or other relative, with whom the child has been living) and the likely effects of change of school, removal of friends, and any other relevant change in lifestyle.

It also includes the beneficial effects that might arise from a change in the child’s circumstances, for example, where there is a particular problem associated with the school the child is currently attending, or consideration of the beneficial effects of separating from a person who was harming the child.

Many child support cases refer to the factor of “status quo” – this phrase refers to the general view that if a child’s current parenting arrangements are stable and the child is progressing well, the Court should be cautious about changing the situation unless there are good reasons for considering that doing so will benefit the child. The approach the Courts generally take is that “status quo” may be one of the various matters that may be relevant to a child’s best interests, in addition to the primary considerations of the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from harm.

However, the “status quo” is important and the Court’s approach has been that it should give clear reasons if it wishes to disturb a long-standing and satisfactory settlement arrangement. In the case of In the Marriage of Bennett (1990), a case where the young children had lived with their mother for most of their lives and were well-settlement, the Court ordered that the father have custody of the boy and the mother have custody of the girl. The mother successfully appealed, and one of the appeal grounds was that the judge had given insufficient explanation for the disturbance of the status quo. In contrast, in the matter of Re David (1997), the children were in the care of the mother who had opposed any contact between the children and the father and had made unfounded allegations of sexual abuse by the father. The Court ordered a change in the children’s residence to the father on the basis that this change in status quo was the only way to preserve the children’s contact with the father.

It is generally assumed that children will benefit from remaining with their siblings, and the Court will usually be cautious and reluctant to separate siblings unless it appears to be in the children’s best interests in all the circumstances. Circumstances in which the Court is most likely to find that siblings should be separated include the following:

– Where the children detest each other;

– Where the children are widely separated in age;

– Where the circumstances of either parent prevent that parent from taking care of all of the children

– Where the children have already been separated and are happy and adjusted in their existing surroundings;

– Where one child, particularly a child of mature years, expresses strong views to be with one parent;

– Where one parent has difficulty controlling or caring for certain children and the other parent would be better able to perform this task.

However, it is important to remember that each case must be considered on its individual circumstances, and there is no legal rule that siblings should never be separated, or separated only in the above circumstances.

The changes in a child’s circumstances are only one category of factors that the Court considers when taking into account the “additional considerations” to the “primary considerations” in determining what is in the best interests of the child.

If you require assistance with a child custody matter or in obtaining parenting orders, Prime Lawyers – Family Law Division can help. Contact us to make an appointment with a family lawyer at your nearest Prime Lawyers office.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.